Thursday, July 12, 2018

chupp

We are not persuaded. Our reviewing court has explained that, to demonstrate that a product, such as a chemical compound, has unexpected properties sufficient to overcome a prima facie showing of obviousness, a patent applicant need not "produce superior results in every environment in which the compound may be used. To be patentable, a compound need not excel over prior art compounds in all common properties." In re Chupp, 816 F.2d 643, 646 (Fed. Cir. 1987). Instead, "[e]vidence that a compound is unexpectedly superior in one of a spectrum of common properties, as here, can be enough to rebut a primafacie case of obviousness." Id.Thus, the Examiner's position, that the undisputedly significant improvement shown by Appellants is insufficient to show nonobviousness because the improvement was not shown throughout the entire post administration period, conflicts with the holding in Chupp, 816 F .2d at 646, 647 (rejection of claims to herbicidal compound reversed over showing of unexpected properties based on single method of use).